A vaccine requirement for staff at all U.S. nursing homes and other federally funded healthcare facilities can proceed, the Supreme Court said in a 5-4 decision Thursday afternoon.
The Court lifted two injunctions blocking a Centers for Medicare & Medicaid Services rule covering more than 17 million workers, including all who may interact with patients at more than 15,000 nursing homes. The rule, announced Nov. 5 and on hold in half the country for several weeks, may now move forward.
The High Court also voted 6-3 to stay, or block, a rule from the Occupational Safety and Health Administration requiring workers at large employers to be vaccinated or get tested regularly. It would not have threatened nursing homes’ core Medicare and Medicaid funding streams, but it still figured to have a profound affect due to various other business relationships. That rule is being watched closely by other long-term care and senior care providers. It, unlike the CMS mandate, would allow for a test-out option for those not getting vaccinated.
In a Dec. 28 CMS memo guiding compliance in 25 states not covered by the now-lifted injunctions, the agency laid out new deadlines and targets for the mandate. Workers must have at least one shot by Jan. 27, and a second shot (if applicable) by Feb. 28.
Facilities with less than 100% vaccination coverage may face removal from the Medicare or Medicare Medicaid programs under the CMS mandate. The agency has previously said, however, that it would pursue other enforcement measures first. It also has said it will provide 30-day and 60-day grace periods to providers that get shots to more than 80% of staff by the first deadline.
“I’m initially a little surprised that the CMS rule is going into effect, ” Angela Rinehart, an attorney in the healthcare practice group at Indianapolis-based Katz Korin Cunningham, told McKnight’s Long-Term Care News. “I think it was the right decision given the statutory authority. I don’t think anyone is surprised by the OSHA opinion.”
Nationwide, 79.7% of nursing home workers had been fully vaccinated as of Dec. 26, according to CMS data. But several states were reporting lower averages. Lawyers who contested the mandate on behalf of 25 states told the court during oral arguments Jan. 7 that rural areas are particularly unprepared to get to 100%.
“Vaccines and boosters are the most powerful tools we have in the battle against Covid-19; they save lives,” Katie Smith Sloan, president and CEO of LeadingAge, said after the court’s announcement. “While mandates can sometimes make it harder for employers to keep or find qualified workers – especially as omicron surges and workforce challenges are growing – we encourage all members, regardless of care setting or community type, to ensure staff get vaccinated.”
Some providers have said the vaccine stipulation could result in massive employee losses and force closures due to already historic staffing shortages. A McKnight’s Long-Term Care News survey in late December found 75% of U.S. nursing homes restricted admissions due to staffing shortages or related pandemic issues in 2021.
During oral arguments, however, a lawyer for the Biden administration said government inquiries showed most employees have not followed through with threats to quit when shots have been mandated by companies in the past, either against influenza or during the current pandemic. Sloan said a recent poll of her non-profit members revealed “the vast majority are ready to move forward on the CMS healthcare worker mandates.”
It was unclear Thursday how or when CMS would extend its existing guidance to remaining states. Some experts believe it is possible that a delay similar to the one put into place by the interim final rule that did not affect states in the lawsuit could be brought into play. That amounted to an approximate 10-week delay in implementation dates.
The two separate court challenges to the mandate remain. Thursday’s ruling only addressed the injunction. It was not a ruling on the merits. Conflicting lower court rulings could bring either or both CMS cases back to the Supreme Court at a future date.
But in an American Hospital Association blog, attorney Sean Marotta said the initial Supreme Court decision “will likely control the outcomes in those courts because the Supreme Court will express its view on whether the mandates are likely lawful.”
Thursday’s decision was largely predicted by legal observers, especially after the initial hearing stretched to four hours as justices questioned attorneys and revealed their leanings.
Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the three liberal-leaning justices, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan in issuing the majority opinion that allows the CMS mandate to proceed.